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Statutory Sick Pay Changes

Statutory Sick Pay

In light of the coronavirus outbreak, the Chancellor announced the following changes to the rules relating to SSP in his budget address on 11 March:-

Entitlement to SSP would start from the first day of absence, rather than only after 3 waiting days.

Businesses with fewer than 250 employees would be able to reclaim from the State SSP paid to any employee for up to 14 days in connection with coronavirus.

Employees who cannot work because they have self-isolated in accordance with government guidance, and who otherwise qualify for it, would be entitled to SSP – notwithstanding that they might not actually be unfit to work.

It has taken time for the legislative amendments to be made to give effect to these changes, and it continues to evolve. The current position is this.

SSP Start Date and Eligibility

The legislation was amended on 28 March to provide that employees who commenced, or commence, a period of incapacity for work related to coronavirus on or after 13 March are entitled to SSP from the first day of absence provided that they miss at least 4 consecutive days of work.

Obviously, a period of incapacity for work will relate to the virus if an employee is rendered unfit to work due to infection. The legislation was amended on 13 March so that an employee will also be deemed to be incapacitated if they are not working because they are self-isolating for 7 days due to suffering symptoms of coronavirus (even if they are not actually unfit to work). The legislation was amended further on 28 March, backdated to 13 March, to extend this to employees who are not working because they are in a period of 14-day “household isolation” because a member of their household has suffered symptoms of coronavirus.

“Symptoms of coronavirus” means the recent onset of either or both of

a continuous cough or

a high temperature or, from 18 May

a loss of, or change in, normal sense of taste or smell (anosmia)

or any other symptoms of coronavirus as may be specified by the Chief Medical Officer or one of the Deputy Chief Medical Officers in guidance as amended from time to time.

Therefore, if an employee commenced a period of absence because of self-isolation or infection with the virus before 13 March and they would otherwise be eligible for SSP, they will still not have qualified for SSP until the fourth day of absence.

Employees who work sufficiently limited part time hours will not benefit from the change in the rules. For example, an employee who starts a 7-day isolation period on a Saturday and normally works on 3 days between a Monday and a Friday will miss just 3 days’ work, and so still won’t qualify for SSP.

The legislation was amended still further on 16 April, so that from that date a person who is not working will also be deemed incapable of work for a reason related to coronavirus when they are isolating themselves because:

they are defined in public health guidance as extremely vulnerable and at very high risk of severe illness from Covid-19 because of an underlying health condition and

they have been advised by a notification (sent to, or in respect of, them) that, in accordance with that guidance, they need to follow rigorously shielding measures for the period specified in the notification.

The legislation was amended again on 28 May so that a person who is not working will be deemed to be incapable of work if they are self-isolating because they have been notified under the Test and Trace system that they have had contact with a person with coronavirus. Such individuals are to self-isolate for 14 days – unless and until they develop symptoms of coronavirus, in which event they are to apply for a test, and if that is positive they must self-isolate for 7 days from when they developed symptoms.

NB: The above changes do not apply to employees who are absent in any other circumstances. It remains that employees who are off sick other than due to coronavirus are only entitled to SSP from the fourth day of absence, unless they have been off sick and getting SSP within the previous 8 weeks.

Reclaiming SSP

An online service is to be available to reclaim SSP from 26 May.

In published guidance, the government has stated that the Coronavirus Statutory Sick Pay Rebate Scheme will repay eligible employers up to 2 weeks' SSP that they pay, or have paid, to any current or former employees who were eligible to receive it (as per the above) in circumstances where they were unable to work because they either:

had coronavirus symptoms;

were self-isolating because someone they live with displayed coronavirus symptoms; or

were shielding in line with public health guidance.

Employers can claim for periods of sickness starting on or after:

13 March 2020, if the employee had coronavirus symptoms or was self-isolating because someone they live with displayed symptoms; or

16 April 2020, if the employee was shielding.

The scheme can be used by employers if they had a PAYE payroll scheme that was created and started on or before 28 February 2020 and (in combination with any “connected companies and charities”, if applicable) had fewer than 250 employees on 28 February 2020.

What constitute “connected companies and charities” is not defined in the current guidance. However, it is noted that in its direction to HMRC regarding the operation of the Coronavirus Job Retention Scheme (“CJRS”) of 15 April, the Treasury uses the term “connected” and states as follows:-

without prejudice to the above, whether a charity is connected with an employer (where the employer is a charity) must be determined in accordance with section 5 of the Small Charitable Donations Act 2012 as if: a) references to a tax year in that section were omitted and b) subsection (7) of that section were omitted.

Logically, “connected” will have the same meaning in relation to companies and charities in the context of the Coronavirus Statutory Sick Pay Rebate Scheme as it has in the context of the CJRS. It appears that the headcount of connected employers in the context of the CJRS which are not companies or charities will not be aggregated in determining whether the 249-employee limit for accessing the SSP rebate scheme is exceeded.

The guidance states that employers must keep records of all the statutory sick payments that they want to claim from HMRC for 3 years following their claim, including in relation to each relevant employee:

the reason why they could not work, i.e. if they had symptoms, someone they lived with had symptoms or they were shielding;

their National Insurance number;

the dates when they could not work and which of those were SSP qualifying days.

Employees do not need to provide a doctor’s fit note in order for the employer to be able to claim. If evidence is required by an employer (which will be in the employer’s discretion), employees can be asked to self-certificate for up to 7 days’ incapacity and, thereafter, those who are self-isolating for up to 14 days in accordance with public health guidance can get an isolation note from NHS 111 online, whilst those who are in a highly vulnerable group and have been notified in accordance with public health guidance that they should be shielding can be asked to produce a copy of the relevant notification.

The current full government guidance on the Coronavirus Statutory Sick Pay Rebate Scheme is here.